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Exhibit 10.5
CHANGE
IN
CONTROL
 
AGREEMENT
THIS CHANGE
 
IN CONTROL
 
AGREEMENT ("CIC
 
Agreement") is
 
made by
 
and between
 
U.S.
Century Bank, with
 
Corporate Offices located at 2301 NW 87
th
 
Ave., Doral, FL 33172 (hereinafter called the
"Bank"
 
or the
 
"Company"),
 
its subsidiaries,
 
divisions
 
and associated
 
and affiliated entities
 
("Affiliates")
 
and Mr.
Nicholas Bustle ("Executive").
WHEREAS,
as
 
consideration for
 
Executive's acceptance
 
of employment
 
with the
 
Bank as
 
Chief
Lending
 
Officer
 
(pursuant
 
to
 
the
 
terms
 
set
 
forth
 
in
 
the
 
Bank's
 
Employment
 
Offer
 
of
 
Executive
 
Vice
President/Chief Lending Officer, dated May
 
8, 2019 ("Offer Letter"),
 
which is incorporated
 
by reference
 
in
this Agreement), the parties hereto,
 
intending to be legally
 
bound, agree as
 
follows:
1.
Payment
 
Upon Change
in
Control, Tn the event of
 
a Change in
 
Control (as defined herein), the
Company
 
agrees
 
to
 
issue payment
 
to
 
Executive
 
in
 
the
 
total amount
 
of
 
one-times the
 
Base
Annual Salary of the Executive applicable for
 
the one (1) year period
 
prior to the Change
 
in
Control, to
 
be paid
 
within thirty
 
(30) days
 
of the
 
consummation of
 
the Change
 
in Control.
Bank's provision of
 
this benefit to
 
Executive is made
 
without regard to
 
whether, or
 
for how
long, Executive remains employed with the surviving company subsequent to
 
the Change in
Control.
2.
Change
in
Control.
 
"Change in
 
Control shall mean the
 
occurrence of
 
an event described in
(i), (ii), (iii)
,
or (iv) below:
(i)
Any person or group
 
(within the meaning of Sections 13(d) and 14(d) of the Securities
Exchange
 
Act
 
of
 
1934,
 
as amended
 
(the "Exchange
 
Act")),
 
other
 
than the
 
Bank,
 
an
affiliate of the
 
Bank or
 
a trustee
 
or other fiduciary
 
holding securities under
 
an employee
benefit
 
plan
 
of the
 
Bank or
 
a
 
corporation owned
 
directly or
 
indirectly by
 
the
 
stockholders
of Bank
 
in substantially the same proportions as their ownership of stock of the Bank,
becomes the
 
beneficial
 
owner (within
 
the meaning
 
of Rule
 
13(d)(3) under
 
the Exchange
Act,
 
directly
 
or
 
indirectly (which
 
shall
 
include
 
securities
 
issuable
 
upon
 
conversion,
exchange or otherwise) or securities representing 50% or
 
more of the combined voting
power
 
of
 
the
 
Bank’s
 
then-outstanding
 
securities
 
entitled
 
to
 
vote
 
for
 
the
 
election
 
of
directors.
(ii)
Consummation of an agreement
 
to merge or
 
consolidate with another
 
entity (other than
a
 
majority-controlled
 
subsidiary
 
of
 
the
 
Bank)
 
unless
 
the
 
Bank's
 
stockholders
immediately before the
 
merger or consolidation own more
 
than 50%
 
of the combined
voting power of the resulting entity's voting securities (giving
 
effect to the conversion
or exchange of securities issued in the merger consolidation to the other entity that are
convertible
 
or
 
exchangeable
 
for
 
voting securities)
 
entitled
 
generally
 
to vote
 
for the
election of
 
directors.
(iii)
Consummation
 
of
 
an
 
agreement
 
(including,
 
without
 
limitation,
 
an
 
agreement
 
of
liquidation)
 
to
 
sell or
 
otherwise dispose
 
of
 
all or
 
substantially all
 
of the
 
business or
 
assets
of the Bank (or a subsidiary thereof); or
(iv)
Individuals who,
 
as of
 
the date
 
hereof, constitute the
 
Board of
 
Directors of
 
the Bank
(the
 
“Incumbent
Board”) cease
 
for
 
any
 
reason
 
to constitute
 
at least a majority of
the Board,
 
provided that
 
any person
 
becoming a
 
director
subsequent
 
to the date
 
hereof
whose election or nomination
 
for election by the stockholders
 
is approved
 
by a
 
vote
of at
 
least a
 
majority of
 
directors then
 
constituting the
Incumbent Board shall be, for
purposes of
 
this Agreement,
 
considered
 
as though
 
such person were a member of
the Incumbent Board.
 
 
 
 
 
 
 
 
Notwithstanding
 
the foregoing,
 
no
 
event shall
 
constitute a Change
 
in
 
Control unless such event
shall also constitute a
 
change in control as
 
defined in Section 409A of the
 
Code.
3.
Signing Bonus Conditions
 
Unaffected.
 
As set forth
 
in the Offer
 
Letter, Executive
 
shall
 
be
entitled to a signing bonus
 
in the amount of One Hundred Thousand
 
Dollars ($100,000.00),
subject to the qualification
 
that if Executive resigns
 
his employment within the
 
first year of
employment,
 
regardless
 
of
 
reason, Executive
 
shall be
 
required
 
to reimburse
 
Bank the
 
full
amount of
 
the signing
 
bonus.
 
In the
 
event that
 
a Change
 
in Control
 
occurs within
 
the first
 
year
of Executive's
 
employment, such
 
action shall
 
have no
 
impact on
 
the conditions
 
related
 
to
Executive's signing bonus. In other words, in
 
the event
 
that Executive
 
resigns in the first
 
year
of employment due to a Change
 
in Control as defined
 
above, Executive shall be
 
required to
reimburse
 
Bank the
 
full amount
 
of the
 
signing
 
bonus. Such reimbursement must
 
be completed
within
 
thirty (30) days of Executive's date of
 
separation.
4.
Severability.
 
Should any
 
provision of
 
this Agreement
 
be declared
 
or determined by
 
any court
of competent
 
jurisdiction to
 
be unenforceable
 
or invalid
 
for any
 
reason,
 
the validity
 
of the
remaining parts, term or provisions of this Agreement
 
shall not
 
be affected
 
thereby and
 
the
invalid or
 
unenforceable
 
part,
 
term
 
or
 
provision
 
shall
 
be
 
deemed
 
not
 
to
 
be
 
a
 
part of
 
this
Agreement.
5.
Applicable Law/Forum.
 
This Agreement
 
has been entered into
 
and shall be
 
governed by and
construed under the internal laws of
 
the State of Florida, without regard
 
to conflicts of laws
or
 
principals.
 
All
 
suits,
 
proceedings
 
and
 
other
 
actions
 
relating
 
to,
 
arising
 
out
 
of
 
or
 
in
connection with this Agreement
 
will be
 
submitted solely
 
to
 
the in
 
personam jurisdiction
 
of the
United States District Court for
 
the Southern
 
District of Florida
 
("Federal Court") or to
 
the
Circuit
 
Court
 
in
 
Broward
 
County
 
or
 
Miami­
 
Dade County.
 
Executive
 
hereby
 
waives
 
any
claims against or
 
objections
to
such in personam jurisdiction and venue.
6.
Notice.
 
All
 
notices and
 
other communications
 
hereunder
 
shall
 
be in
 
writing
 
and
 
shall
 
be
deemed to have been
 
given only if and when personally delivered or three (3) business days
after mailing, postage prepaid, registered or certified mail, or when delivered (and
 
receipted
for) by an express delivery service, addressed in each
 
case. As to
 
notices provided to Bank,
notices shall be sent to the Human
Resources
 
Department
 
at
 
the address
 
of the Bonk
 
listed
in
the introductory
 
paragraph
 
of this Agreement.
As to
 
notices to
 
Executive, notices
 
shall be
 
sent to
address
 
provided
 
below. Executive
 
and Bank
 
may
 
change
 
the address for the
 
giving of notices.
7.
Complete
 
Agreement.
 
This
 
Agreement
 
represents
 
the
 
complete
 
agreement
 
between
Executive and Bank
 
regarding the subject
 
matter of this
 
Agreement.
 
This Agreement is
 
in no
way dependent upon the performance of any other
 
contract or agreement that may
 
have been
or may
 
be entered
 
into
 
between Executive
 
and Bank
 
and remains
 
in effect
 
during the
 
pendency
of this
 
Agreement.
 
As such, the
 
breach or alleged breach of
any
other contract or agreement
is no defense to enforcement of this Agreement.
8.
Amendments
 
in
 
Writing.
 
No
 
amendment,
 
modification,
 
waiver,
 
or
 
other
 
change
 
to
 
this
Agreement, shall in any event
 
be effective unless the same shall
 
be in writing,
 
specifically
identifying this
 
Agreement and
 
the provision
 
intended to be
 
changed and
 
signed by Bank
and Executive, and
 
each such change shall be effective only in
 
the specific instance
 
and for
the specific purpose for which it is given.
 
No provision
 
of this Agreement
 
shall be
 
varied,
contradicted or
 
explained by
 
any oral
 
agreement, course
 
of dealing or performance or any
other matter not set
 
forth in an
 
agreement in writing and signed by Executive and Bank.
 
 
 
 
 
 
 
 
 
 
 
 
9.
Acknowledgment.
 
Executive
 
acknowledges
 
that
 
Executive
 
bas
 
read
 
this
 
Agreement
in
full
 
and
completely understands
 
all of
 
its terms
 
and obligations
 
and enters
 
into this
 
Agreement freely
 
and
voluntarily,
 
and
 
after
 
having
 
the opportunity
 
to consult
 
with
 
representatives of
Executive's
own
choosing and that Executive's agreement is freely
 
given.
IN WITNESS WHEREOF, the
 
parties hereto
 
have duly
 
executed this
 
Agreement on the
 
date first
above mentioned.
 
U.S. Century Bank
 
Employee
 
By:
 
/s/ Luis de la Aguilera
 
/s/ Nicholas Bustle
 
 
Title:
 
President and CEO
 
Print Name:
 
Nicholas Bustle
 
 
Dated:
 
5/17/2019
 
Dated: 5/16/19
 
 
Address:
 
_